Kunitzer v. Cummings

McCarthy, J.

The defendant indorsed the note in suit for the benefit of her son in law, Arthur K. Thyll, and to give credit to such note, and the plaintiff then cashed the same.

Her answer herein alleges several counterclaims for board of plaintiff’s family and- friends by defendant.

Plaintiff denied such counterclaim under such general denial. "We think he proved that the claims for board embraced in such counterclaims were due to said Thyll, and was paid in full, to him.

It was proper for the plaintiff under the general denial to show that the claims mentioned were due to another and .were paid.

It was not necessary for him, in his reply, as defendant contends, to allege accord, satisfaction and payment of the counterclaim set up by the defendant.

By his general denial he denied the existence of the same and showed by evidence, as he had a right to do, to whom the claims mentioned were- due, and the settlement thereof later.

Eor the same reason it was proper to put in evidence the advertisement issued by Thyll, seeking for boarders at the place wherein defendant claims she conducted a hotel or boarding house, and it was also proper to show by the testimony of the other boarders at the place in question, with whom they made their arrangements for board and to whom they paid their debt for such board.

Such testimony tended to corroborate plaintiff’s testimony that Thyll and not the defendant was the hotel or boarding house keeper. 1

We think that the record clearly shows that the note in suit was . hot paid by the defendant and that the plaintiff was not indebted to her for board, but, on the contrary, such indebtedness was due. Thyll and was fully paid to him.

We have examined the record carefully and find that no error was committed and the judgment, therefore, must he affirmed, with costs.

Van Wyok, Oh. J., and Sohughmait, J., concur.

Judgment affirmed, with costs.